Principles and practices of EU external representation - TMC Asser ...

CLEER WORKING PAPERS 2012/5
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are safe 47 ), it did not entail a judgment that the Dublin II system as such is
unlawful. Third, in the case of Karoussiotis 48 the European Commission had
started infringement proceedings against Portugal before the case reached
Strasbourg. This raised a new legal question of admissibility: Do EU infringement
proceedings constitute ‘another procedure of international investigation
or settlement’ within the meaning of Article 35(2)b ECHR and therefore make
the application inadmissible? The Court answered in the negative and found
the application admissible. On the merits however, it did not find a violation.
Fourth, the case of Ullens de Schooten and Rezabek 49 concerned the refusal
to refer a preliminary question to the Court of Justice. The Strasbourg Court
ruled that both the Belgian Conseil d’Etat and the Belgian Court de Cassation
had given reasons for their refusal. It found that, in this light and having regard
to the proceedings as a whole, there had been no violation of the applicants’
right to a fair hearing under Article 6(1) ECHR. All these cases raised or potentially
raised (first case) legal questions that require the Strasbourg Court to
consider issues of EU law proper. Can the refusal to refer to the Court of Justice
amount to a violation of Article 6(1) ECHR? What is the nature of the infringement
procedures conducted by the European Commission? How much
discretion do Member States have to assess whether the asylum procedures
of another Member State are in compliance with the ECHR? Are the procedures
foreseen in the EAW Framework Directive lawful? The question addressed in
the following section is how will this situation change with the EU‘s accession.
3. Reform and Accession: How Do the Two Influence Each
Other?
3.1. Accession Negotiations and the Implications of the Draft
Agreement in Strasbourg
The Lisbon Treaty, on the side of the EU, and Protocol 14, on the side of the
ECHR, have paved the way for the EU’s accession – at least on a formal institutional
level. There are still many steps to take on this way until actual accession.
Official talks on the EU’s accession to the ECHR started on 7 July 2010.
On the side of the Council of Europe, its Steering Committee for Human Rights
(CDDH) negotiated with the Commission the necessary legal steps for the EU’s
accession to the ECHR. The working group that was set up to negotiate accession
met 8 times between July 2010 and June 2011. It was composed of
Commission representatives and of delegates of 14 member states of the
ECHR, 7 of which were EU Member States. Observers from the Committee of
Legal Advisers on Public International Law (CADHI) and from the registry of
47 Ibid., recital 2.
48 ECtHR, Karoussiotis v. Portugal, ECHR (2011), Appl. No. 23205/08.
49 ECtHR, Ullens de Schooten and Rezabek v. Belgium, ECHR (2011), Appl. No. 3989/07
and 38353/07.
110